Centers for Disease Control and Prevention (CDC) are advocating for the institution of proper COVID-19 measures in long-term facilities. Despite the push, 37% of all COVID-19 fatalities in the US result from the 26,000 facilities in the country. Are nursing homes responsible for the surge of COVID-19 infections and deaths?
Broadly speaking residents in various nursing homes are more susceptible to the disease. Their advanced age and underlying medical conditions make them very vulnerable. But in some scenarios, the nursing facilities are negligent in their actions or inactions, leading to a faster spread. In Ormond Beach, Florida, a long term care facility reported 22 COVID-19 linked deaths.
Are Florida Nursing Homes Immune from Liability?
Many states passed liability shields for nursing homes and healthcare providers. The immunity protects the staff at nursing homes from liability for COVID-19 deaths and infections. However, the liability shields have restrictions, and in certain circumstances, the nursing home can be accountable for negligence.
In Florida, however, the Florida Life Care Residents Association objected the enactment of the immunity legislation for long-term care providers. Nursing homes in Florida are not immune to liability and can be held accountable for any actions or inactions to the residents.
Why are Florida Nursing Homes Filing for Negligence Immunity?
In April 2020 Florida Health Care Association (FHCA) requested for negligence immunity in COVID-19 cases. The immunity protects the care providers in the long-term facilities but to a more considerable extent, undermines the safety of the seniors.
Enactment of the law makes the nursing home facility immune to various civil liability and criminal claims. As a result of the immunity, the medical safety of the seniors during the pandemic is jeopardized.
With the surging COVID-19 cases in the over 90 Florida nursing home, most stakeholders are against the passing of the legislation. In particular, most personal injury lawyers believe that negligence against the seniors should not be protected and wrongful death lawsuit should hold.
On the other hand, nursing facilities claim that immunity is set to protect their rights. Most healthcare providers claim they will work at ease if the negligent and criminal suits do not threaten them.
Are Nursing Homes Accountable for all COVID-19 Deaths?
CDC requires the nursing homes to abide by certain legal conditions. Hygiene practices, wearing of masks, and social distancing must be observed in the facilities. The nurses and other staff must not expose the seniors living there to the virus.
If the nursing facility adequately obliges to the World Health Organization (WHO) guidelines, they should not be held liable for COVID-19 deaths. For a liability case to be substantial, the plaintiff must prove that their loved ones were exposed by the nurses knowingly to the disease.
Nursing Home Should be Accountable for any Negligence.
Negligence or offering of inadequate care to seniors is prevalent in most nursing homes. It is classified as elder abuse, and the involved parties should be held accountable. The significant types of neglect in nursing homes include:
Medical neglect
The nursing home may neglect to provide proper medical care. During the COVID-19 pandemic, the facility may fail to respond to medical concerns of the residents. The actions or inactions may lead to the elder succumbing to the disease.
Federal Nursing Home Reform Act of 1987 states that all nursing homes must offer safe facilities. The regulations have been amended due to surge of the COVID-19. The caregivers at the facility must not neglect to provide the necessary care.
Failure to provide essentials
Any resident in the facility should have full access to basic needs. The healthcare providers have a legal duty to provide water, food, and other basic needs. If a nursing home negligently fails to provide such necessities, they should be held accountable.
Personal hygiene neglect
Maintenance of stringent hygiene practices is essential during the COVID-19 pandemic. Neglect occurs when the nursing facility fails to provide proper hygiene conditions.
Emotional or social neglect
Unfair treatment to the seniors or failing to attend to their needs is considered as social neglect. In Florida nursing homes, the plaintiff must prove that the nursing home conducted some form of negligent actions. The negligence performed must contribute to the spread of COVID-19.
What are the Elements of the Negligence Claim?
1. Duty
For a negligence claim to be substantial legal duty must exist between the parties. The nursing facility, in this case, owes the seniors a legal duty to provide them with competent care.
2. Breach of Duty
The nursing facility must not breach its duty by performing or not performing actions that endanger the elders. Breach of duty primarily occurs when the nurses fail to provide standard care as directed by the law. For instance, if the medical care provided is below standards for a competent medical provider.
3. Causations
Due to the breach of duty, the senior at the facility acquired or succumbed to the COVID-19. The actions or inactions of the nursing home directly resulted in the avoidable injury.
4. Damages
The harm must be legally recognized. Medical expenses, pain and suffering, or emotional distress are damages in the negligence claim. However, the extent of damages is subjective and depends on a wide array of factors.
Settlement Negotiations in Nursing Home Negligent Claims
The process of settlement negotiations can be quite intimidating. Despite satisfying all the four elements of the negligent claim the nursing home or insurer might be reluctant to settle. If you feel your loved was handled inappropriately, hiring a personal injury lawyer will help in the settlement negotiations.
The defendant will refuse to compensate unless facts are tabled before them. Conversely, the nursing facility will defend its actions and claim they were inevitable under the circumstance. Due to the complexity of the law and procedural steps, hiring a lawyer is paramount.
The process of settlement negotiations may take several months to years. The primary steps involved include:
Filing a Lawsuit
The nursing home victim or family can file a complaint to the court. Filing a lawsuit initiates the trial process. In the filling process, the plaintiff must state the reason for the claims and the specific parties they wish to hold accountable.
Pretrial Investigation
Filing for a neglect claim is not automatic. Investigations are paramount to establish under which circumstances the nursing facilities are responsible for the spread of the virus. If the facility did not take the right steps to combat the disease, it would bear liability for its actions or inactions.
Sending the Demand Letter
An attorney helps in the crafting of a demand letter. The letter is sent to the defendant to demand compensation. The nursing home may opt to either reject or accept the compensation terms.
Mediation Process
Mediation seeks to reach an agreement for both parties. A private mediator facilitates a peaceful mediation process. The nursing home may offer compensation which the plaintiff can either accept or reject. If the plaintiff rejects the case proceeds to trial, and the jury will determine the compensation amount.
Why Hire a Personal Injury Lawyer?
They are Knowledgeable
Personal injury lawyers argue cases based on facts. They will gather substantial evidence concerning any negligent acts done on the seniors. Since the lawyers understand all the elements of neglect, they mainly base their cases on a knowledgeable perspective.
The Best Legal Representation
The trial process is often procedural and technical. For a beginner, the requirements of the case can be quite intimidating. Hiring a lawyer ensures the trial process is done in a just manner. You get the best legal representation and consequently, fair compensation.
Exemplary Negotiation Skills
The novel question of the right compensation amount is quite contradicting in any negligence claim. The nursing home will often want to settle for the least value despite their negligence. A lawyer helps in the proper evaluation of the compensation value. They evaluate the nature of the economic and non-economic damages to find the correct value.
Fast Settlement Claim
If the nursing facility acts negligently, they will expose your loved ones to the virus. The medical costs and burial expenses incurred are tremendously high. Since the expenses incurred could have been avoided, the defendant must compensate immediately. A lawyer ensures the settlement claims are made at the right time and as agreed in the mediation process.
Investigate the Nursing Home’s Evidence
The nursing home will try to present evidence claiming they are not responsible for all negligence. In some scenarios, they may even manipulate their evidence to evade any compensation. A lawyer scrutinizes the evidence presented, to ascertain whether it’s based on facts.
Get Compensation by Hiring Shiner Law Group
During the COVID-19 pandemic, Florida has instituted regulations restricting visitation in specific nursing homes. Although the restrictions seek to reduce the spread of the virus, significant concerns are erupting. Since the family cannot visit the elders in the long-term care facility, the care providers are becoming reluctant in providing proper medical care.
If your family or loved one is a victim of negligent care contacts us immediately. We have a comprehensive understanding of the legal abuse in nursing homes and will fight for your rights. Talk to our injury lawyers and see if you will receive the right compensation for the negligence.
